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Federal government implements ECJ decision in Argenta case

The federal government has adopted tax measures which aim to simplify and harmonize the tax rules and to adapt them to recent case law.

Implementation of ECJ decision in Argenta case

The most important measure is the implementation of the decision of the Court of Justice of the European Union in the Argenta case. As a reminder, in that case the ECJ ruled that for calculating the notional interest deduction, the reduction of the equity capital with the net worth of an establishment of which the income is exempt in a country with which Belgium has concluded a tax treaty is incompatible with the freedom of establishment.

The government now proposes the following remedy:

In a first stage, the net worth of establishments or real estate of which the income is exempt in a country with which Belgium has concluded a tax treaty will no longer be excluded from the calculation base of the notional interest deduction.

In a second stage, the notional interest deduction calculated on the net worth of establishments or real estate in a country outside the European Economic Area with which Belgium has concluded a tax treaty, must be excluded.

The notional interest deduction calculated on the net worth of establishments or real estate in a country inside the EEA with which Belgium has concluded a tax treaty must only be excluded to the extent that it is lower than or equal to the profits attributable to those assets. As a consequence, a company will no longer lose the part of the notional interest deduction attributable to establishments or real estate in an EEA treaty country which are in a loss position.

To illustrate this, suppose a Belgian company with

a Belgian establishment entitled to a NID of 20

a Dutch establishment entitled to a NID of 10

The total NID is 30, but as the company has an establishment in an EEA treaty country, the NID should in principle be reduced by 10, resulting in a NID of 20. However, if the Dutch establishment has a loss, there is no reduction and the total NID remains at 30. If the Dutch establishment has a profit of 4, the company will lose an amount of NID of 4, but will be able to claim a NID of 6. In that case, the total NID is 26.

These changes enter into force as from assessment year 2014.

Other tax measures

The government has also decided other tax measures.

the reference emission of CO2 needed to calculate the benefit in kind of a company car will be calculated earlier (over a 12-month period ending on 30 September instead of over the calendar year) so that it will be available before the start of a new year instead of in the first months of the new year (thus avoiding payroll corrections for those first months);

the threshold for the filing of monthly VAT returns is raised from 1 to 2,5 million EUR;

the minimum amount to qualify as business assets for VAT purposes is raised from 250 to 1.000 EUR.

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